Analysis

A Sad Day For The Judiciary

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Justice Rajinder Sachar

Scandalous, irresponsible and impervious to public interest - one would like to cry out at the situation where as reported in the press that there are 458 vacancies out of 1074, the full strength of High Court judges in India. But one does not do so because of inborn partiality of one belonging to the same legal fraternity - if a similar situation had been prevailing in the executive, the wise and sensitive men and women of legal fraternity would have shouted from the house top of the inefficiencies and lack of sensitiveness on the part of politicians at violating public interest. So, if now someone in the executive sarcastically reminded the judiciary (being wary of listening to the daily homilies from the Bench) “Physician, heal thyself” he / she could not be proceeded against for contempt for the simple reason, “though the work of judges is divine, the tragedy is that judges have somehow started believing that they have become divine”.Apart from the fact that there are many High Courts which have acting chief justices. Is it any wonder that arrears keep on mounting with the inevitable consequence of anger rising against the judiciary.

The tragedy is that in all this maligning of judiciary, the legal fraternity including the judiciary, have also to share the blame. No doubt the secrecy and lack of consultation with public and the bar were faults of the collegium system. But, instead of court itself doing this correction by administrative measure it chose to reopen the collegiums system delivered earlier by a 9-judge bench decision.

It is correct that the situation was brought about by the unseemly action by the legislature and gleefully led by ministers in the government to curtail and downgrade the effectiveness of the judiciary - the irony being that these worthies had earned their exalted position because of the impartiality and status of the judicial system. The legal fraternity was right in shouting “Et tu Brutus”.

After the decision, the collegiums should have started the process of filling the vacancies, but still further to show that it is open to the suggestions from the bar and public as to the methodology of not only selecting judges but also the process of making the process more transparent. It was expected that after further court hearings, it would come out with a Memorandum of Procedure for selection. But, surprisingly, after weeks of court hearing, it decided to avoid its responsibility and asked the government to frame the Memorandum of Procedure. I have still not understood the logic of this decision which was bound to be self defeating - this naturally gave an opening which had been closed permanently by the bench holding earlier that the last word in the selection of judges was that of the collegium.

So the government having got this golden opportunity unabashedly prepared a Mop (including the objectionable and illegal suggestion considered in the light of the decision of the constitution bench) that if the name of the judge is not approved by the Executive he will not be appointed. Another obnoxious suggestion by the Government Memo is that the attorney general and advocate generals should, along with the judiciary, be on the selection of judges. How horrendous and openly objectionable this suggestion is that it had not found place even in Judges Act which was passed by the legislature and which has been held to be unconstitutional. Are we then in a dark alley with no opening. No doubt this situation is greatly worrisome, but a quick solution has to be worked out.

I am in this context suggesting that it is the duty of the former Chief Justices and even the judges of the Supreme Court to involve themselves in this deadlock by openly coming out with their views. It is not a strange suggestion - when a 5-judge bench invited suggestions from the public about the Memorandum of Procedure, some of the retired Supreme Court judges and retired Chief Justices of High Court sent a memo openly during the hearing giving their views on the matter. They had no embarrassment at sending suggestions which may have been rejected by the bench, considering that some of the present judges at some point in the past might have been their juniors. At time like this notions of undue delicacy and aloofness should he given up because at stake is the independence of the judiciary - one of the sheet anchors of our constitution. The old lot needs to jump into the fight not as partisans but as a sobering influence on the stubborn stand being taken by the executive, which is openly saying that it will not relent on its stand of not appointing a judge whom the executive disapproves. It is outrageously unconstitutional, but there it is.

Long ago Montesquieu saw this predicament and opined “that there can be no liberty if the power of judging be not separate from the legislative and executive powers”.

This conflict between executive and judiciary has not been settled and will always remain a matter of debate. But it is well to remind the executive of certain postulates which are unalterable.

Thus even 400 years after the Magna Carta was signed King James I of England felt unhappy when prerogative courts set up by him came into conflict with old courts applying the common law. King James I summoned the Chief Justice, Sir Edward Coke, and asked him to stop interfering with the prerogative courts. “The king’s will,” James asserted, “is supreme”. Sir Edward Coke, the Chief Justice of the Court of Common Pleas, responded that the judges must follow the common law, to which the King answered wrathfully, “then I am to be under the law - which it is treason to affirm.” Coke replied by quoting Brocton, a medieval scholar monk, Rex non debete sse sub homine sed sub deo et lege”  (The king ought not to be under any man, but under God and the law). The story of this exchange has echoed down through the centuries.

In India, similarly, we have had the established principle that king, though an absolute sovereign, must yet function within dharma - which is another way of proclaiming the principle of the supremacy of law.

Wherever there is a written Constitution the supreme law is the law of the Constitution and for even parliament to accept that its powers are limited by the written Constitution is not in any manner to derogate from its sovereignty, but only to accept that its sovereignty like the sovereignty of the executive and the judiciary is limited by the written Constitution.

Can one hope the executive to act with grace and accept that it is not the modern Henry VIII of England fame, because of settled principle that the sovereignty vests in the people as expressed in our Constitution.     

The author is a former chief justice of Delhi High Court

This article appeared in The Milli Gazette print issue of 1-15 July 2016 on page no. 11

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